The Youngstown Osteopathic Hospital Association

National Labor Relations Board - Board Decisions

Jun 10, 1976

224 N.L.R.B. 574 (N.L.R.B. 1976)

574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Youngstown Osteopathic Hospital Association
and Pamela Yacoub Case 8-CA-9155
June 10, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On October 16, 1975, Administrative Law Judge
Eugene George Goslee issued the attached Decision
in this proceeding Thereafter, the General Counsel
filed exceptions and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Labor Relations Act, as amended,
the National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith
The Administrative Law Judge found that the
General Counsel did not prove by a preponderance
of the evidence that Pamela Yacoub was discharged
because of her protected concerted activity in viola-
tion of Section 8(a)(1), he dismissed the complaint
The General Counsel excepts, contending the record
is clear that Yacoub was terminated in whole or at
least in part because of her protected concerted ac-
tivity We find merit in the General Counsel's excep-
tions
Yacoub, a welfare billing clerk, was hired on May
8, 1974 In September or October 1974 she was com-
plimented on her work by Fine, Respondent's execu-
tive director, and given a quality increase Beginning
in January 1975, however, Yacoub by her own ad-
mission fell behind in the billing of welfare accounts
Yacoub's dereliction did not go unnoticed, however,
for as early as January 1975, employee Fabian, after
hearing complaints about Yacoub's leaving the office
and not doing her work, reported the problem to
Mrs McGinnes, the office manager and Yacoub's
immediate supervisor Fabian also reported the prob-
lem to Hamrock, the payroll clerk, and showed Ham-
rock examples of Yacoub's failure to bill welfare ac-
counts timely Hamrock, 6 weeks to 2 months before
April 3, 1975 1 (the date of Yacoub's discharge),
brought the matter to the attention of Fine, and told
him that approximately 500 welfare accounts had not
been billed In spite of this serious complaint Fine
did nothing about the situation for the next 2
months
' All dates are 1975 unless otherwise noted
At the end of March, Fine told Respondent's con-
troller, Henshaw, to investigate some problems with
welfare billing Henshaw did so and found that al-
though Yacoub was behind there was not an exces-
sive number of unbilled accounts on her desk On
March 29, prior to the quarterly check of welfare
accounts made by Fine's secretary and prior to the
time when Fine allegedly decided to fire Yacoub,
Henshaw called Yacoub into his office and asked her
why she was behind in her work According to the
uncontradicted evidence Henshaw did not mention
termination, but indicated only that Fine was putting
some pressure on him about billing problems Ya-
coub explained her marital problems to Henshaw
and asked if Fine would accept such an explanation,
Henshaw said he did not know
On April 1, Fine's secretary found that 300-400 of
Yacoub's welfare accounts had not been billed and
so informed Henshaw and Fine On April 1, as a
result of this report, and not before, as erroneously
found by the Administrative Law Judge, Fine pur-
portedly told Henshaw to fire Yacoub In spite of
Fine's order, however, Yacoub was not fired on April
1, but instead continued on with her work, Respon-
dent provided no explanation as to why Yacoub was
not fired on April 1 or 2 She was not fired until
midday of April 3, after she had engaged in protected
concerted activity
On April 3 Yacoub talked to Nancy Russell, a pro-
bationary employee, who had just been discharged
Yacoub then complained about Russell's discharge
to Union President Donatella who told her that nei-
ther he nor the Union could do anything for Russell
because she was a probationary employee Yacoub
then returned to her desk and drafted a petition pro-
testing Russell's discharge Yacoub signed it, and
presented it to Donatella who expressed agreement
with it, but declined to sign it "at the top" because he
did not want Respondent to think it was union-spon-
sored
Donatella then called Theresa Shaffer, a union
grievance representative, and told her about
Yacoub's petition Shaffer told her supervisor, Krus-
kall, about the petition in Fine's presence Fine stipu-
lated on the record that he was aware of Yacoub's
petition, and that he told Henshaw about it At or
about 2 p in on April 3, 1975, less than 1 hour after
Fine learned of the petition, Henshaw called Yacoub
to his office and terminated her When Yacoub asked
why, Henshaw replied that "we have already dis-
cussed your being behind in your work," and added
"besides we heard you circulated a petition, and
that's against the Union contract "
The Administrative Law Judge found that
Yacoub's drafting of and attempting to circulate the
224 NLRB No 69
THE YOUNGSTOWN OSTEOPATHIC HOSPITAL ASSOC 575
petition on behalf of Russell was protected and con-
certed within the meaning of Section 7 He further
found that her activities were not only known to Re-
spondent but were interjected by Henshaw at
Yacoub's termination interview on April 3 Nonethe-
less, the Administrative Law Judge rejected the Gen-
eral Counsel' s contention that the mention of the
protected activity during the termination interview,
plus the timing of the discharge and absence of prior
warnings , support an 8(a)(1) discharge finding Rath-
er, he found that Yacoub was discharged for cause,
relying in part on events which occurred after her
discharge
He relied on the fact that the petition was not
mentioned during the April 4 meeting of the Union's
job security committee with Fine and Henshaw
which was convened to discuss Yacoub ' s discharge
He further noted that Yacoub expressed no surprise
at Fine's explanation of her discharge and admitted
she had been lax in her work But we are not con-
vinced that these facts really bear on why Yacoub
was fired, the issue herein We would not expect
Fine, an attorney , to admit he fired Yacoub either in
whole or in part for circulating the petition In addi-
tion , the scope or subject matter of the posttermina-
tion discussion was established by Fine and it is,
therefore, not surprising that the subject of the peti-
tion was not discussed That Yacoub admitted she
had been lax in her work is likewise not determina-
tive, she had so admitted to Henshaw on March 29
The question is whether her laxity was, without more,
the reason for her discharge
In answer to the General Counsel 's contention that
the lack of any prior warning to Yacoub supports the
conclusion that the Respondent 's asserted reason for
the discharge was a pretext , the Administrative Law
Judge found Yacoub was warned on March 29, and
that she clearly anticipated discharge from that date
In fact , the record does not support this finding As
early as the beginning of February complaints were
made to Fine concerning Yacoub's performance, yet
no action was taken against her The first discussion
of her situation occurred on March 29, and no men-
tion of discharge was made Contrary to the Admin-
istrative Law Judge 's finding , Henshaw did not fully
know "the results of Yacoub ' s performance," when
he talked to her on March 29, for Fine 's secretary
had not made her quarterly check of welfare ac-
counts Moreover , even had this information been
known by Henshaw on March 29, we fail to see what
difference it would have made inasmuch as the same
information (that Yacoub was 500 accounts behind)
had been given to Fine 2 months earlier by Ham-
rock , and no action taken Why did a situation that
Fine had been informed existed at least 6 weeks to 2
months before Yacoub's discharge suddenly become
so critical And, if Yacoub's work deficiencies were
suddenly so serious as to require terminating her
midday in the middle of a pay period, why was Re-
spondent willing to reinstate her only 2 weeks after
her termination 9 2
In summary, Fine knew that Yacoub was 400-500
accounts behind at least 6 weeks before her dis-
charge, he did nothing He did not order an investi-
gation at that time Yacoub was not given a warning
or even spoken to by anyone in management until
about 2 months later If the matter was as critical as
Respondent contends, why did Fine wait 6 or more
weeks to investigate? Respondent submitted no ex-
planation
On March 29, Henshaw finally asked Yacoub
about her work, but did not warn her that she faced
termination He, in effect, asked her why she was
behind On April 1, after Fine and Henshaw were
informed by Fine's secretary that Yacoub was 300-
400 accounts behind, information which had been
reported to Fine as much as 6 to 8 weeks earlier, Fine
told Henshaw to terminate Yacoub In spite of this
order Henshaw did not terminate her on April 1 or 2
Rather he waited until 2 p in on April 3, 1 hour after
he and Fine learned of her petition activity Most
significantly, as found by the Administrative Law
Judge, Yacoub was told at the time of termination
that she was being terminated partly because she had
circulated the petition-"Besides we heard you were
circulating a petition "
Under Board precedent if part of the reason for
terminating an employee is unlawful, the discharge
violates the Act As the Board and the courts have so
often indicated, the issue is not whether there existed
grounds for discharge apart from union or protected
concerted activities That the employer has ample
reason for discharging an employee is of no moment
An employer may discharge an employee for any
reason, good or bad, so long as it is not for union or
protected concerted activity Even if the discharge is
based on other reasons as well, if the discharge is
partly in reprisal for protected concerted activity, it is
unlawful Since this was indeed the case with Ya-
coub, we find her discharge violative of Section
8(a)(1)
THE REMEDY
Having found that Respondent has violated Sec-
tion 8(a)(1) by terminating Pamela Yacoub, we shall
order that it cease and desist therefrom and take cer-
2 Respondents offer to reinstate Yacoub was conditioned on her accept-
ing a 3-month probationary pe-iod, such a conditional offer does not toll
backpay
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tam affirmative action to remedy the unfair labor
practice and effectuate the policies of the Act Specif-
ically, we shall order that Respondent offer Pamela
Yacoub immediate and full reinstatement to her for-
mer position or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to
her seniority or other rights and privileges We shall
also order that Respondent make Pamela Yacoub
whole for any loss of earnings she may have suffered
by payment to her of the amount she normally would
have earned as wages from April 3, 1975, to the date
of an offer of reinstatement, less net earnings Back-
pay shall be computed on a quarterly basis in the
manner set forth in F W Woolworth Company, 90
NLRB 289 (1950), and shall include the payment of
interest at the rate of 6 percent per annum to be
computed in the manner set forth in Isis Plumbing &
Heating Co, 138 NLRB 716 (1962)
CONCLUSIONS OF LAW
1 Respondent, The Youngstown Osteopathic
Hospital Association, is an employer within the
meaning of Section 2(2) of the Act, and is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act
2 By discharging Pamela Yacoub for engaging in
protected concerted activity, Respondent has violat-
ed Section 8(a)(1) of the Act
3 The aforesaid unfair labor practice is an unfair
labor practice within the meaning of Section 8(a)(1)
of the Act
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
The Youngstown Osteopathic Hospital Association,
Youngstown, Ohio, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Interfering with, restraining, or coercing em-
ployees by discharging employees for engaging in the
protected concerted activity of drafting and circulat-
ing a petition protesting another employee's dis-
charge
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, as amended
2 Take the following affirmative action designed
to effectuate the policies of the Act
(a) Offer Pamela Yacoub immediate and full rein-
statement to her former position or, if that position is
no longer available, to a substantially equivalent po-
sition without prejudice to her seniority or other
rights and privileges, and make her whole for any
loss of earnings she may have suffered as a result
of her discharge by Respondent in the manner set
forth in the section of this Decision entitled "The
Remedy "
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order
(c) Post at its place of business at Youngstown,
Ohio, copies of the attached notice marked "Appen-
dix " 3 Copies of said notice, on forms provided by
the Regional Director for Region 8, after being duly
signed by Respondent's representative, shall be post-
ed by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material
(d) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with
3In the event that this Order is enforced by a Judgment of a United
States Court of Appeals the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we have violated the law
and has ordered us to post this notice
WE WILL NOT interfere with, restrain, or coerce
our employees by discharging them for engaging
in the protected concerted activity of drafting
and circulating a petition protesting the dis-
charge of a fellow employee
WE WILL offer Pamela Yacoub reinstatement
to her former position or, if that position is no
longer available, to a substantially equivalent
position without prejudice to her seniority or
other rights and privileges
THE YOUNGSTOWN OSTEOPATHIC HOSPITAL ASSOC 577
WE WILL make Pamela Yacoub whole for any
loss of earnings she may have suffered as a re-
sult of our unlawful action against her
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them by Section 7
of the National Labor Relations Act, as amend-
ed
THE YOUNGSTOWN OSTEOPATHIC HOSPITAL
ASSOCIATION
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GoSLEE, Administrative Law Judge This
case came on to be heard before me on August 28, 1975, at
Youngstown, Ohio, upon a complaint issued by the Gener-
al Counsel of the National Labor Relations Board I and an
answer filed by Youngstown Osteopathic Hospital Associ-
ation, hereinafter sometimes called the Respondent The
issues raised by the pleadings relate to whether or not the
Respondent violated Section 8(a)(1) of the Act by dis-
charging Pamela Yacoub because of her protected concert-
ed activities
Upon the entire record in this proceeding, and having
observed the testimony and demeanor of the witnesses, I
hereby make the following 2
FINDINGS OF FACT AND CONCLUSIONS
I JURISDICTION
The complaint alleges, the answer admits, and I find that
(1) the Respondent operates a nonprofit hospital at
Youngstown, Ohio, (2) its gross revenues and purchases of
goods in interstate commerce are sufficient to satisfy the
standards for the assertion of jurisdiction, and (3) the Re-
spondent is an employer within the meaning of Section
2(2) of the Act, and engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act
II THE UNFAIR LABOR PRACTICES ALLEGED
Pamela Yacoub was first employed by the Respondent
on May 8, 1974, as a welfare billing clerk in the insurance
department In the course of her duties Yacoub handled
billing and correspondence for State and local welfare pa-
tients, as well as Bureau of Workmen's Compensation and
some social agency accounts During the initial stages of
her employment, Yacoub's job performance was more than
satisfactory, she was complimented on her work by Ray-
1 The complaint in this proceeding was issued on June 13 1975 upon a
charge filed on May 2 1975, and duly served on the Respondent on May 7
1975
2 Counsel for the General Counsel and counsel for the Respondent exer-
cised the opportunity for oral argument, and both waived briefs
mond Fine, the Respondent's executive director, and in
September or October 1974, Yacoub was given a quality
increase in compensation The record also reflects, howev-
er, that during the later period of her employment there
was a substantial deterioration in Yacoub's job perfor-
mance, and that she dropped far behind in billing welfare
accounts
Jean Fabian, an insurance clerk, credibly testified that
after January 1, 1975, some of the employees in the insur-
ance department complained that Yacoub was leaving the
office and not doing her work Fabian reported the prob-
lem to Mrs McGinnis, the office manager and Yacoub's
immediate supervisor Fabian also reported the problem to
Mary Helen Hamrock, the payroll clerk, and showed Ham-
rock examples of Yacoub's failure to timely bill welfare
accounts In the period of 6 weeks to 2 months prior to
April 3, 1975,3 Hamrock brought the matter to the atten-
tion of Executive Director Fine, explaining Fabian's com-
plaints and informing Fine that approximately 500 welfare
accounts had not been billed
It was Fine's practice to have his secretary check the
welfare accounts during the course of each month Some-
time late in March Fine told the Respondent's controller,
James Henshaw, that there were some problems with wel-
fare billing, and asked Henshaw to investigate Henshaw's
immediate inquiry revealed no excessive number of un-
billed accounts on Yacoub's desk, but after Fine's secre-
tary pulled the account cards, Henshaw looked further into
the matter and found 300-400 accounts that had not been
billed Henshaw reported his findings to Fine shortly be-
fore April 1, and Fine instructed Henshaw to terminate
Yacoub
About March 29, Henshaw called Yacoub to his office
and asked why she was behind in her work Henshaw ex-
plained that Fine was putting some pressure on him about
the billing problems and he had to have information to
provide Fine with the reasons Yacoub replied that, as she
had told Henshaw before, she was having trouble with her
marriage, that she was contemplating divorce, but was
planning to quit her employment and leave Youngstown if
she did not proceed with a divorce Yacoub also asked
Henshaw if he thought these reasons would be acceptable
to Fine, and Henshaw stated that he did not know
During the lunch hour on April 3, Yacoub met employee
Nancy Russell, who informed her that she had been dis-
charged because she was not learning her job fast enough
as a typist in the medical records department Later on the
same day, Yacoub contacted Joseph Donatella, president
of the Union which represents some of the Respondent's
employees, including office and clerical employees Ya-
coub explained the Russell discharge on the grounds that
Russell had been terminated without an adequate opportu-
nity to learn her job, but Donatella explained that under
the terms of the bargaining agreement, there was no possi-
bility of processing a grievance for a probationary employ-
ee Yacoub returned to her desk and drafted a petition
protesting the discharge of Russell on the grounds, factual-
ly incorrect, that Russell had been discharged after a trial
period of only 3 days Yacoub signed the petition and pre-
3 All dates hereinafter are in 1975 unless specified to the contrary
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sented it to Donatella, who expressed agreement, but re-
fused to sign next because he did not want the employees
to believe that the petition was sponsored by the Union
Yacoub returned to her desk and without attempting to
obtain further signatures, put the petition in her lunch bag
After the conversation with Yacoub concerning the Rus-
sell petition, Donatella called Theresa Shaffer, the Union's
grievance representative for the medical records depart-
ment Donatella explained that Yacoub had drafted a peti-
tion for the reinstatement of Nancy Russell, and Shaffer
asked if it would be all right if she informed her supervisor,
Delores Kruskall, about the petition Later on April 3, in
the presence of Fine, Shaffer told Delores Kruskall about
the petition, and Kruskall replied, "All right " Fine stipu-
lated on the record in this proceeding that he was aware of
the petition drafted by Yacoub on behalf of Russell, and
he passed the information on to Henshaw
At or about 2 p in on April 3, Henshaw requested Ya-
coub to come to his office, where he informed her, "Go
home, you are terminated " Yacoub expressed shock and
asked why Henshaw replied, "We have already discussed
your being behind in your work," and added, "Besides, we
heard that you were circulating a petition, and that's
against the Union contract "
The foregoing findings are based upon a composite of
the testimony of the witnesses presented by the General
Counsel and the Respondent, and the essential facts are
not seriously in contest After notification that her job was
in jeopardy, Yacoub drafted a petition in protest of the
discharge of Nancy Russell Yacoub's activity was both
protected and concerted within the meaning of Section 7 of
the Act, and her activities were known to the Respondent
and interjected by Henshaw at Yacoub's termination inter-
view on April 3 Although the General Counsel argues that
this evidence, plus the timing of the discharge and the ab-
sence of prior warnings to Yacoub about her job perfor-
mance, supports a finding of discrimination, I find, for the
additional reasons advanced below, that Yacoub was dis-
charged for cause
I have found above, based upon Yacoub's admissions
and the credited testimony of other witnesses, that
Yacoub's job performance during the last several months
of her employment was unsatisfactory, and that a decision
had been made to discharge her before she intruded into
the matter of the discharge of Nancy Russell The finding
that the discharge was motivated by legitimate cause, not
by Yacoub's protected concerted activities, is additionally
supported by events which transpired after Yacoub's dis-
charge
It is the Respondent's practice, apparently in accord
with its collective-bargaining agreement, to afford the job
security committee an opportunity to hear the facts and
present opposition in the case of the termination of any
employee in the bargaining unit The job security commit-
tee met on April 4 concerning the discharge of Yacoub
Present were Yacoub, Fine, Henshaw, and several union
representatives, including the grievance representative
from the insurance department Fine explained that Ya-
coub was discharged because she had fallen far behind in
billing welfare accounts and had caused the delay in collec-
tion of substantial revenues due the Hospital According to
the credited testimony of both the General Counsel's and
the Respondent's witnesses, I find that Yacoub expressed
no surprise at Fine's explanation for the discharge, and
admitted that she had been lax in her work Yacoub ex-
plained her failure to adequately perform her job on
grounds of emotional problems resulting from difficulties
with her marriage The record also reflects that Yacoub
expressed dissatisfaction with her job, on grounds that it
was not very interesting and, because welfare had rejected
the Hospital, she was rejecting welfare Although Yacoub
initially denied that she referred to any dislike for welfare
she admitted when recalled as a witness by the Respondent
that she stated that she was tired of welfare bullshit There
was no mention at the job security meeting of the petition
Yacoub drafted on behalf of Nancy Russell, and it was not
raised by Yacoub, the Respondent, or the Union as a fac-
tor in Yacoub's termination
Fine did not change his decision to terminate Yacoub as
a result of the meeting with the job security committee, and
Yacoub filed a grievance with the Union The Union's ex-
ecutive committee met with Fine, he rejected the grievance,
and the Union decided not to submit the matter to arbitra-
tion There is no evidence in the record that Yacoub's
grievance alleged that the discharge was motivated in any
part by the Nancy Russell petition, and even though Dona-
tella was aware of Yacoub's activities and the contents of
Henshaw's remarks on April 3, there is no evidence that
the petition was mentioned when the executive committee
met with Fine on the grievance
After the Union's decision not to proceed to arbitration,
Donatella approached Fine and asked for reconsideration
of Yacoub's discharge Fine agreed to reconsider and met
with Yacoub, Donatella, and Dora Marsco, Yacoub's
grievance representative in the insurance department Fine
asked Yacoub if she had given any thought to her job and
she replied that she believed she could come back and do
the work because her personal problems at home had been
taken care of Because the employees in the insurance de-
partment had complained about Yacoub's work habits and
performance, it was agreed that Marsco would poll the em-
ployees in the department to determine whether Yacoub
was welcome to return to work A majority of the employ-
ees voted to accept Yacoub back in the department and, on
April 15, with Donatella present, Fine presented Yacoub
with a written offer to return to work The essentials of
Fine's offer were reinstatement on a 3-month probationary
period effective April 16, but without backpay The written
offer also assured Yacoub that she would retain her senior-
ity, but for reasons she did not explain at the hearing, Ya-
coub rejected the offer
In addition to his other contentions, the General Coun-
sel argues that Yacoub's inadequate job performance was
not the motivating reason for her termination because of
Fine's admission that it took only 2 weeks to catch up on
the unbilled welfare accounts and because Henshaw gave
Yacoub a postdischarge letter of recommendation for em-
ployment The General Counsel further argues that the ab-
sence of evidence of any prior warning to Yacoub about
her performance supports a conclusion that Respondent's
asserted reason for the discharge is a pretext I find no
merit in these contentions
THE YOUNGSTOWN OSTEOPATHIC HOSPITAL ASSOC 579
There is no evidence that Yacoub was warned about her
job performance at any time prior to her meeting with
Henshaw on March 29 However, on the credited testimo-
ny of the witnesses, and Yacoub's admissions during the
course of the hearing, there is no doubt that she was fully
aware of the inadequacies of her performance, and the im-
pact of delayed billings Yacoub was also aware that Fine's
secretary periodically checked the welfare accounts, and as
a rational human she had no reason to anticipate that her
continued derelictions of duty could result in any course
other than the imposition of discipline On March 29, after
the results of Yacoub's performance were fully known, she
was called in by Henshaw for an explanation, and her in-
quiry as to whether Fine would accept her personal and
emotional problems as a justification is a clear indication
that she anticipated termination
Fine stipulated at the hearing that he had stated in an
affidavit given to the General Counsel that it required 2
weeks to catch up on the unbilled welfare accounts Rose
Rothbauer, who took over Yacoub's job after the termina-
tion, testified that she spent approximately 2 weeks to put a
dent in the backlog, and 6 weeks to fully catch up Roth-
bauer actually performed the work, and in the absence of
my reason to discredit her testimony, this is the best evi-
dence of the state of Yacoub's accounts Moreover, a con-
trary finding would not support the General Counsel's con-
tention By her own admission, some of Yacoub's unbilled
welfare accounts dated back 3 to 4 or more months, and
the shorter the time required to make up the backlog, the
greater the weight of the evidence that Yacoub was derelict
in her duties
The record does reveal that on May 6, Henshaw gave
Yacoub a letter addressed to "Whom It May Concern,"
recommending her for employment Henshaw admitted
that he volunteered to give Yacoub the recommendation
out of personal concern that she was the sole breadwinner
for her family Henshaw also admitted that he was given a
reprimand by Fine for imposing on another employer an
employee who had been discharged for failure to perform
her duties Balanced against the Respondent's subsequent
offer to reinstate Yacoub if she expressed the willingness to
perform her work, Henshaw's letter of recommendation es-
tablishes nothing more than an act of personal kindness in
recognition of the personal and emotional problems which
contributed to Yacoub's inadequacies on the job
In summary, I find and conclude that the General Coun-
sel has not proved by a preponderance of the evidence that
Yacoub was discharged because of her concerted protected
activities In arriving at this conclusion, I have considered
the timing of the discharge, the Respondent's knowledge of
Yacoub's petition on behalf of Nancy Russell, and
Henshaw's acknowledgment of the petition at the termina-
tion interview Balanced against this evidence is uncontra-
dicted evidence that Fine had determined and ordered the
discharge of Yacoub before she undertook the petition,
and the evidence that Fine's decision to discharge Yacoub
was supported by substantial cause I have also considered
the postdischarge events, and the complete absence of evi-
dence that either Yacoub or the union representatives con-
tended or sought to establish in thejob security committee
proceedings, the grievance proceedings, or the proceedings
leading to Fine's offer of reinstatement, that her discharge
was motivated by any reason or consideration other than
those asserted by the Hospital In addition, Fine agreed to
the Union's request for reconsideration, and his offer to
return Yacoub to her position was conditioned solely upon
her expression of willingness to properly perform her job,
with no mention of any extraneous considerations
CONCLUSIONS OF LAW
1 The Respondent, the Youngstown Osteopathic Hos-
pital Association, is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
2 The General Counsel has not proved that the Respon-
dent has violated the Act in any respect
[Recommended Order for dismissal omitted from publi-
cation ]